Is Utah About To Elect Another Senator Who Thinks Medicare Is Unconstitutional?
Last year, Sen. Mike “A Noun, A Verb, and Unconstitutional” Lee (R-UT) upset longtime Sen. Bob Bennett (R-UT) in the Utah GOP’s arcane candidate selection process — allowing the Tea Party to elevate someone to the Senate who believes that everything from Medicare to Social Security to child labor laws somehow violate the Constitution. Since then, Utah’s senior Sen. Orrin Hatch (R) has tripped over himselfto pretend that he is just as radical as young Sen. Lee.
Alas, all of Hatch’s extremist posturing may be for naught, as the Tea Party has found someone who shares their apparent policy goal of ensuring that people who can’t afford health care are left to fend for themselves:
During a recent media blitz in Washington, D.C., Dan Liljenquist, a state senator from Utah, went after Sen. Orrin Hatch, arguing he has done more than any other Republican to promote nationalized health care. […] The skirmish is the first between these potential 2012 opponents. Liljenquist, a Republican, says he won’t make an official decision until early next year, but he has prepared for a possible run for Hatch’s seat. […]
[Liljenquist] argued that Hatch is not committed to returning power to the states, focusing on the State Children’s Health Insurance Program that Hatch spearheaded in 1997. That program, which pays for health coverage for poor children, has come under fire from tea party Republicans who see it as a step toward a national takeover of health insurance. Liljenquist went as far as to call it “unconstitutional.”
Liljenquist’s suggestion that the State Children’s Health Insurance Program (SCHIP) is unconstitutional is absurd. SCHIP works by providing funds to states to help them pay for health insurance for children. Because the Constitution allows the federal government “to lay and collect taxes” and to use those revenues to “provide for the…general welfare of the United States,” there is simply no doubt that it can spend money on providing health care to vulnerable young people.
Moreover, other essential health care programs — such as Medicare and Medicaid — stand on similar constitutional footing as SCHIP. So if Liljenquist thinks one of these programs is unconstitutional, it is likely that he believes that we must eliminate all three.
In other words, if Liljenquist succeeds in taking Hatch’s Senate seat, Utah could become the only state in the union to have its entire Senate delegation believe that the Constitution requires millions of children, low-income Americans and seniors to be cast out into the cold with no meaningful access to health care.
By: Ian Millhiser, Think Progress, November 28, 2011
The Affordable Care Act And The Text Of The Constitution: Words Still Matter, Even in the Supreme Court
The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act last week is a blunt statement that the law’s opponents “cannot find real support” for their arguments “in either the text of the Constitution or Supreme Court precedent.”
Now that the Supreme Court has agreed to take up this case later this year, Silberman’s words are a stern reminder that the text of the Constitution must guide judges’ decisions, especially in politically charged cases, and that Silberman’s fellow conservatives on the Supreme Court must ignore the temptation to place politics over fidelity to the Constitution by striking down the Affordable Care Act.
There can be no question that Silberman is right about what the Constitution has to say about this law. The federal government’s power is not unlimited—the Constitution gives Congress a laundry list of “enumerated powers,” and Congress cannot stray beyond this list—but its authority is quite sweeping when it regulates nationwide commercial markets such as the market for health care services. In the Constitution’s words, Congress may “regulate commerce . . . among the several states.”
The plaintiffs’ primary challenge to the Affordable Care Act is to the provision requiring most Americans to either carry health insurance or pay slightly more income taxes. In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this narrow vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.
There are many, many problems with this theory of the Constitution. But Silberman’s rebuttal of it is both the most simple and the most elegant response to the plaintiffs’ entirely fabricated legal theory. The Constitution says nothing suggesting that people can immunize themselves from the law simply by remaining passive. It simply provides that the United States may regulate commerce among the several states.
Modern judges do not need to speculate what the founding generation understood these words to mean when they were written into the text of the Constitution. Chief Justice John Marshall—himself one of the ratifiers of the Constitution—told us what they mean in the 1824 case of Gibbons v. Ogden. Marshall wrote that there is “no sort of trade” that the words “regulate Commerce” do not apply to. He said that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’s power to regulate commerce “among the several states” applies to all trade that “concern[s] more states than one.”
So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade—trade for health services—and it regulates a health services market that is both pervasive and nationwide. The Affordable Care Act cases are some of the easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that a handful of judges have struck the law down.
Thankfully, the overwhelming majority of judges to review the law have upheld it. Of the four federal appeals courts to consider the Affordable Care Act, only one voted to strike it. That one outlier decision was grounded on a false fear that if the courts were to uphold health reform, it would somehow eliminate all of the existing limits on congressional authority. If Congress is allowed to regulate health care today, the law’s opponents argue, tomorrow they will force everyone to buy broccoli.
Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez, the Supreme Court explained that the power to regulate “commerce” includes sweeping authority over the nation’s economy, but Congress’s authority over noneconomic matters is far more limited. Thus a wide range of noneconomic regulation—including federal laws governing personal and sexual morality or even a federal ban on assault, rape, or murder—clearly exceed Congress’s enumerated powers. Sweeping regulation of the national health care market, by contrast, fits comfortably within the Constitution’s text.
Because the text of the Constitution clearly and obviously supports the Affordable Care Act, the Supreme Court has an unambiguous duty to uphold it. Judges are not like members of Congress. They are unelected, and they serve for life. As such, they cannot be held accountable to the people through fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the power to ignore the text of the Constitution then there is literally nothing that they cannot do.
Indeed, if the justices strike down the Affordable Care Act, there is nothing preventing them from forcing every American to buy broccoli.
By: Ian Millhiser, Center For American Progress, November 14, 2011
Conservative Federal Appeals Judge: Case Against Health Reform Has No Basis In ‘The Text of the Constitution’
When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh— the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.
And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion that absolutely obliterates any suggestion that the ACA is not constitutional:
Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickarddoesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. […]
That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
When a federal judge tells you that your argument has no basis in the text of the Constitution, it is a good sign you don’t belong in court. When he compares your argument to claims that the federal ban on whites-only lunch counters are unconstitutional, it’s an even better sign of how deeply radical your argument has become. When that judge is Judge Laurence Silberman, a man who has stood at the pinnacle of conservative judicial thinking for decades, it is about as good a sign as you can hope for that the Supreme Court is not going to like your argument either.
By: Ian Millhiser, Think Progress, November 8, 2011
Partisanship: Blame Grover Norquist, Not The Founders
Everyone recognizes that Washington is not working the way it should. This has led some on the left, like Harold Meyerson, to question whether the Founders “screwed up.”
Many on the right, meanwhile, are promoting radical changes to our constitutional system. They talk about a version of a Balanced Budget Amendment, which would require a super-majority for most changes in financial policy. This would enshrine in our Constitution the right’s do-little government philosophy.
But the Constitution is not the problem. If we want to get Washington working again, we should listen to the Founders — not blame them for problems of our own making or change the ground rules of the system of government they bequeathed to us.
True, the Founders established a deliberative democracy, with a series of checks and balances designed to prevent the majority from running roughshod over the rights of political minorities. But these checks and balances have served our nation well.
The problem is not the democratic system bestowed upon us by George Washington, Alexander Hamilton and James Madison. The problem is the additional obstacles to action – the filibuster, hyper-partisanship, and special interest pledges – that our Founders would have found abhorrent.
Our Founders struck a delicate balance between the promotion of majority rule – the essential predicate for a democratic government of “We the People” – and the desire to protect minority rights and prevent the “tyranny of the majority.” The Constitution is designed to delay and temper majority rule while allowing a long-standing majority to get its way.
So, for example, the Constitution staggers the election of senators so that only one third of the Senate can change hands in any one election. As a result, it usually takes more than one election for any one party to gain a governing majority.
Modern politicians have placed layer after layer of lard on this deliberative system of government, ultimately producing the gridlock now plaguing Washington. The Senate Republicans now use the filibuster rule as a virtual requirement. Every piece of legislation must enjoy a super-majority of 60 votes in the Senate — meaning a determined minority can permanently stop the majority from getting its way.
President George Washington, in his farewell address to the nation, warned about just such “alterations” to our constitutional system. He said this would “impair the energy of the system.”
Washington also decried political parties. He passionately warned the nation against any effort “to put in the place of the delegated will of the nation the will of a party.”
While political parties were forming and solidifying even as Washington uttered these words, our modern politicians have enshrined hyper-partisanship through tricks like the “majority of the majority” rule, whereby the House speaker will only bring to the House floor legislation that has the support of the majority of his political party.
It is hard to imagine a more powerful example of the precise party-over-country danger Washington warned us about.
Washington may have had the likes of Grover Norquist in mind when he warned that some men “will be enabled to subvert the power of the people and to usurp for themselves the reins of government.”
Even anti-tax Republicans, like Sen. Tom Coburn (R-Okla.) and Rep, Frank Wolf, have now decried the oversized role Norquist’s no new taxes pledge played in forcing the debt ceiling showdown and helping to prevent any solution that would have included new revenues. Coburn and others have warned their colleagues against putting Norquist’s “no–tax” pledge over their oath to support the Constitution and to serve “we the people” – not Norquist or any other special interests.
Washington today has serious problems, but we should not blame the city’s namesake for them. Rather, politicians of both parties should support a reform agenda designed to remove from our political system the modern procedural obstacles that have produced our current gridlock.
Maybe even in these divided political times we can all agree that when casting blame for what ails Washington, the fault it not with George Washington and our other Founding Fathers. It’s with the causes of our current gridlock – including figures like Norquist and his no-tax pledge.
By: Doug Kendall, Opinion Contributor, Politico, October 22, 2011
Making The Court A Priority For Progressives
This week the U.S. Supreme Court opened a new term, for the first time in Barack Obama’s presidency without a new Justice joining the high court. Also this week, two of the Justices testified before Congress in an historic hearing on the role of judges under the U.S. Constitution. A new national conversation about the third branch and the Constitution is gaining the attention of more Americans every day, and it’s one all of us should join.
History shows that nearly every major political issue ends up in the courts. Our nation’s federal courts are where social security appeals are heard, employment cases decided, immigration issues settled, and where Americans vindicate their most cherished Constitutional rights. This year is no different.
This Supreme Court term, lasting through June 2012, promises to be a significant one, with decisions affecting every American. The cases the court will decide this term alone highlight what’s really at stake for all Americans, far beyond any single election or individual term in office.
Consider these important questions the Court is poised to decide: the constitutionality of the Obama Administration’s landmark health care reform legislation; the constitutionality of warrantless surveillance of Americans using GPS tracking devices; the constitutionality of Arizona’s controversial racial profiling immigration law; questions relating to the Family and Medical Leave Act; the constitutionality of religious organizations discriminating in hiring decisions; constitutional questions about the reliability of eyewitness testimony in criminal cases (a key issue in the recent Georgia execution of Troy Davis).
This is a veritable hit parade of issues progressives, independents—indeed all Americans—care deeply about.
Until recently, the courts were generally friendly to progressive public policies. Indeed the federal courts helped to enable the social and economic progress that has made our country stronger and more inclusive over time. Courts were able to do so by adhering to the text and history of the U.S. Constitution and its amendments, and applying the Constitution’s core principles and values to questions of the day.
Conservatives, unhappy with idea that the Constitution guarantees more opportunity all our citizens instead of just for the already privileged few, have in recent years mounted a concerted political effort to remake the federal judiciary in their image: to be more activist and more closely aligned with their political views. Americans used to be able to sleep at night knowing the federal courts were good guardians of our most cherished constitutional principles. Now, the rights many Americans take for granted, like equal access at the voting booth and the ability to challenge discrimination at work, increasingly find a hostile and activist audience in the nation’s courts.
But progressives have a chance to turn the tide. Today, there are a record number of vacancies in our federal courtrooms, as a new Center for American Progress study released this week shows. Unprecedented obstruction by conservative U.S. Senators has led to an abysmal rate of judicial confirmations. This has left a level of empty judgeships not seen at any time under any president in U.S. history. Fully two thirds of the country is living in a jurisdiction without enough judges for the cases that are piling up. It means less access to justice and longer delays in court for the American worker and small business owner.
It doesn’t have to be this way. Progressives need to work together to support making our judiciary more progressive—and to support the confirmation of President Obama’s nominees. It’s time for the judiciary to be a priority for progressives.
The judges progressives want on the bench are judges for all Americans—judges who follow the text and history of the Constitution and apply it faithfully to the questions before them. At a time when the Tea Party is cherry-picking select provisions of the Constitution and discarding others to win short-term political arguments, we need the federal judiciary to be a strong guardian of all of our Constitution’s provisions and amendments for the long-term. With increasingly conservative state legislatures rolling back gains progressives have championed for decades, we need our courts to protect our Constitutional values from the political winds of the moment. These values—liberty, freedom, equality—have driven America’s progress since its founding, and are what make America exceptional around the world today.
Our courts matter for all Americans. And who is on the courts should matter to anyone who cares about the Constitution and the opportunities and protections it promises. It’s time for progressives to unite and support getting more progressive judges on the federal bench. Nothing less than the long term health of our democracy depends on it.
By: Andrew Blotky, Center for American Progress, Originally Published in Huffington Post, October 20, 2011
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